FT Deputy Day London 2015

Deputy Day London 2015

#FTDepu(es

Andrew Ritchie QC, 9 Gough Square

Chair’s Welcome & Introduc(on

Sa@nder Hunjan QC No.5 Chambers

Satinder Hunjan QC

Call : 1984 Silk : 2002

Recorder: 2003 Deputy High court Judge : 2008

The Approach to Capacity and Legal Update

INTRODUCTION

Development of the law

Litigation economics

“New ways” and “old problems”

Legal Professional Privilege

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Mental Capacity Act 2005

The law on procedure following Dunhill

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The Mental Capacity Act provides a framework to empower and protect people who may lack capacity to make some decisions

for themselves.

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Five Key Principles of the Act

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§  Every adult has a right to make his or her own decisions and must be assumed to have capacity to make them unless it

is proved otherwise. §  A person must be given all practicable help before anyone

treats them as not being able to make their own decisions. §  Just because an individual makes what might be seen as an

unwise decision, they should not be treated as lacking capacity to make that decision.

§  Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.

§  Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and

freedoms.

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Distinction between protected party and protected beneficiary.

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The approach to the determination of capacity.

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Masterman – Lister v. Brutton & Co (No 1 & 2) [2002] EWCA Civ 1889 [2003] 1 WLR 1511.

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Capacity is issue specific.

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Dunhill (a Protected Party by her Litigation Friend Tasker) v. Burgin [2014] UKSC 18

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CARE AND CASE MANAGEMENT

Loughlin v Kenneth Dal Singh and others (2013) EWHC 1641

(QB)

Wright v Sullivan (2005) EWCA Civ 656

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ACCOMMODATION AND ROBERTS v. JOHNSTONE

Roberts v. Johnstone continues to be problematic in cases with

modest life expectation – development of the law:

1.  Development of the law

2.  Purchase by the Defendant of the accommodation and use of

indemnities

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ACCOMMODATION

50% deduction of uninjured accommodation costs

Deduction for parental use:

1.  Lewis v Royal Shrewsbury’s Hospital NHS Trust (29.1.07)

2.  Iqbal v Whipp’s Cross University Hospital NHS Trust (2006) EWHC

311(QB)

3.  Whiten v St George’s Healthcare NHS Trust (2011) EWHC QB

Future accommodation moves as in the un-injured state

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PERIODICAL PAYMENTS

Periodical payment reports

Periodical payments with contributory negligence

Periodical payments: indemnities and “Peters” promise

Periodical payments not restricted to care and case management – use of

periodical payments for loss of earnings, Court of Protection and related items

– and other “mean” annualised costs.

Determined by an event – example: Claimant is no longer a protected party.

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GRATUITOUS CARE PROVIDED BY THE TORTFEASOR

Hunt v. Severs [1994] 2 AC 350

“Contract” entered into by the tortfeasor for the provision of

“gratuitous care” – suggested negligent for the Claimant not to

do so.

Law Commission recommendations

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LOST YEARS

Totham v King’s College Hospital NHS Foundation Trust (2015) EWHC 97 (QB)

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HYDROTHERAPY (AQUATIC THERAPY OR AQUATIC PHYSIOTHERAPY)

Evidence is critical; in particular, in respect of the provision of hydrotherapy at home.

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DISCOUNT RATE AND ADJOURNMENT

Discount rate - no news

Adjournment of issue – no takers

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LIFE EXPECTATION AND TABLE 28 – Term certain

Table 28 (term certain) or adaptation of Table 1 (or2) or a

combination

Whiten v St George’s Healthcare NHS Trust (2011) EWHC

QB

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PENSION LOSS

NEST – Future pension contributions 2-8% and opt out

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AVERAGE EARNINGS

ASHE

Self- employed or similar earnings and profits

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THE FUTURE

Legal aid

ATE

One way costs shifting

Litigation outside the Courts

Increased court fees

Limitation moratorium

Costs budgeting

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Satinder Hunjan QC +44 (0) 845 210 5555

[email protected]

Thank You

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Tracey Norris-Evans, Withy King & Dan Benham, RSAW

www.withyking.com

Construc@on & Contracts: Successful Project Management

7TH MAY 2015

By Tracy Norris-‐Evans & Dan Benham

Deputy Day London 2015

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www.loyn.co.uk

Contents of Presenta(on •  What is construc(on & who should be involved?

•  Benefits of employing a design team •  Typical life-‐cycle of a project

•  CDM Regula(ons 2015

•  Contracts & Insurance

Introduc(on

What is Construc(on? •  Carrying out any building work (Internally or Externally)

•  Complicated industry

•  Many preconcep(ons

•  Huge number of piUalls

Construc(on

Who should be involved? •  Not just as simple as employing a builder!

•  Planning submission & regula(ons

•  Building Control Compliance

•  Construc(on Design Management (CDM) Regula(ons 2015

Construc(on

Employing a Professional Design Team •  Typical Design Team Structure

Construc(on

Deputy Protected Party Occupa(onal Therapist

Architect Structural Engineer M&E Engineer

Environmental Control Specialist Principal Designer

Planning Consultant

Case Manager

Quan(ty Surveyor

Why employ a Professional Design Team ? •  Depu(es professionally advise the client

•  Breaches of Statutory Law & Regula(ons

•  Create places that enhance the client’s well-‐being

Construc(on

Enhancing the client’s well-‐being

Construc(on

Professionally advising the Deputy •  Let your professional design team assist you throughout the life-‐cycle of

the project

•  Let your design team guide you through all the ‘hazards’ to ensure compliance with all statutory regula(ons.

Construc(on

Life-‐cycle of the project & the role of the Design Team •  FEASIBILITY:

•  Is the brief possible? •  Is the site selected suitable? •  Are the ground condi(ons suitable for the works proposed?

•  What are the costs of the project? •  Pre-‐applica(on submission with LPA •  CDM regula(ons 2015

Construc(on

Life-‐cycle of the project & the role of the Design Team •  PLANNING:

•  Applica(on required for nearly all projects •  Listed building consent? •  Conserva(on area consent? •  Design and Access Statements •  Highways / Drainage / Environment Agency •  Ecology – bats / birds – criminal offence •  CDM regula(ons 2015

Construc(on

Life-‐cycle of the project & the role of the Design Team •  DETAILED DESIGN:

•  Building regula(ons submission •  Compliance with Bri(sh Standards •  Numerous regula(ons, e.g.

•  Fire safety •  NICEIC •  Radon •  Structures

•  CDM regula(ons 2015

Construc(on

Life-‐cycle of the project & the role of the Design Team •  TENDER ISSUE:

•  Full tender drawings & specifica(ons •  Bills of quan((es •  Schedule of works •  Type of contract •  Pre-‐construc(on Informa(on •  Site hazards and Risks

Construc(on

Life-‐cycle of the project & the role of the Design Team •  SITE:

•  Contract administrator •  Inspec(on of contractor’s work •  Monitoring quality •  Agreeing all changes with contractor •  Monthly payments rela(ng to progress •  Compliance with building regula(ons •  CDM regula(ons 2015

Construc(on

Constantly changing regula(ons •  Planning regula(ons

•  Building control regula(ons (Part L / Part K)

•  CDM Regula(ons 2015

Construc(on

What is CDM 2015 ?

•  Construc(on Design Management Regula(ons

•  Covers health & safety within Construc(on

•  Applies to the design stages as well as the construc(on phase and post occupa(on

•  Bound by criminal law

CDM 2015

Context to CDM 2015

•  Since CDM regula(ons have come into force: •  Significant reduc(on in numbers & rates of injuries over the last 20 years

•  Remains a high risk industry

•  Accounts for 31% of all fatali(es to employees

•  Small sites and refurbishment projects are s(ll a major area of concern

CDM 2015

The objec(ves

•  Improve health & safety on all construc(on projects, especially small works

•  Maintain and improve work protec(on

•  Meet bejer regula(on principles

CDM 2015

Where does it apply?

•  CDM regula(ons apply to all construc(on jobs…

However...big implica(ons on a project are required when there is…

•  More than one ‘trade’ on site!

•  So now applies to all projects!

CDM 2015

Domes(c Projects

•  CDM 2015 now applies to all domes(c projects

•  Failure to comply is a criminal offence and might result in imprisonment!

CDM 2015

What does this mean?

•  More onerous steps for the Deputy

•  Depu(es are not equipped for this •  At any stage on a project (feasibility to comple(on) a Principal

Designer (PD) is to be appointed by the Deputy

•  Roles of the Deputy must be passed onto PD •  A Principal Contractor must be applied for the construc(on phase

CDM 2015

What is the Principal Designer?

•  Replaced the role of CDMC from the previous regula(ons

•  Ensure risks are eliminated or controlled through the design work process

•  Passing informa(on to the contractor before they provide a price

•  Ensure all design team members comply with their du(es

•  Assis(ng the client in prepara(on of the Pre-‐construc(on informa(on

CDM 2015

What is the Principal Designer?

•  No(fy the HSE under the F10 form

•  Prepare the health and safety file for the project

•  Review risk registers of all design team members

•  Ajend design and site mee(ngs

CDM 2015

What is a Health & Safety file?

•  A document selng out different aspect of the project including: •  Defined contents list provided by HSE •  As built drawings •  Cer(ficates •  Residual risks •  Informa(on for future maintenance •  Informa(on for future building development •  Contact informa(on

CDM 2015

Consultant Contracts

The Contracts

Consultant Contracts Small role : check T&Cs that they include: •  Relevant standard of care In carrying out the services the consultant shall use all the reasonable skill, care and diligence to be expected of a qualified and experienced member of the consultant’s profession undertaking the services on work similar in scope and character to the Project. •  No unusual or unacceptable caps or limita(ons of the consultant’s liability. •  Price is correct. •  The correct services to be carried out by the consultant •  Payment regime is correct and acceptable Larger role : outline terms in a contract.

The Contracts

The JCT Contract JCT publishes lots of contracts. Always •  Refer to the full (tle of JCT •  Use the 2011 version

Building Contracts

The Contracts

Minor Works Building Contracts For simple projects. There are 2 x building contracts in this category: •  Minor Works Building Contract (MW) •  Minor Works Building Contract with contractor’s design (MWD)

•  Use MWD where simple element of design to be carried out by contractor

Building Contracts

The Contracts

Intermediate Building Contracts JCT publishes two building contracts in this category: •  Intermediate Building Contract (IC) •  Intermediate Building Contract with contractor’s design (ICD)

Intended for mid-‐sized projects

Sub-‐Contracts •  Contractor is responsible for its sub-‐contractors

•  Consider collateral warran(es – sub-‐contractor carrying out cri(cal part of works or design of part of works

•  Impera(ve to secure the relevant product guarantees

•  Design errors; •  Defec(ve workmanship; •  Delay and/or addi(onal costs caused by the fault of one or more

par(es, or by factors beyond the par(es’ control; •  Insolvency of one or more par(es; •  Accidental or deliberate damage to the works under construc(on; •  Varia(ons (changes made to the project aper the design is finalised or

during construc(on)

Common PiUalls

•  Design – tradi(onal build basis: responsibility is not with the contractor but rests with design consultant

•  Varia(ons – evidence in wri(ng and agree price ↑costs and delays

in completion •  Funding – planning the draw down with the IFA

•  LA disabled grant

Common PiUalls

•  Clause determining how no(ce should be served eg. clause 1.6 of JCT Minor Works Contracts

•  Failure to comply with no(ce provisions: severe consequences

No(ce Provisions

Several years may elapse before a building defect comes to light Limita(ons 6 years Contract 12 years Deed Par(es to the Contract

Deed or Simple Agreement?

Typically: Professional indemnity insurance Product liability insurance Employer’s liability insurance Public liability insurance All works and exis(ng structures insurance

Insurances

•  Physical damage to works and site materials

•  Maintained un(l prac(cal comple(on

•  Typically taken out by contractor

All Risks Insurance

•  v liability arising from professional negligence eg. negligent design, surveying, project management or contract administra(on.

•  Maintained throughout the insured’s period of liability not just un(l the end of project.

Commercial view if contractor doesn’t have it.

Professional Indemnity Insurance

•  Covers injury to TP’s or damage to their property arising out of products supplied by a business

Product Liability Insurance

Public Liability Insurance

•  Covers liability arising from: –  Death or personal injury to Third Par(es –  Damage to property of Third Par(es

•  Cover for injury or disease to employees arising out of their employment

•  Only necessary if nature of project requires >statutory minimum

Employers’ Liability Insurance

•  Design, planning, strategy & Cost •  Site Condi(ons – surveys? eg. asbestos survey •  Timescales •  LA disabled grant •  Collateral warran(es •  CDM co-‐ordinator •  Tender documents •  Liaise with the Quan(ty Surveyor •  Administrator of the building contract •  Snagging

Lead Consultant -‐ Architect

When it all comes together!




The Pressure for Transparency – Issues for Trustees & Deputies

George Hodgson

Transparency – the key pressure points

§  New reporting needed for tax information exchange

§  New HMRC regulations 15 April 2015.

§  New registration requirements for AML purposes

§  New corporate register 1 Jan 2016.

§  Increased pressure from banking sector keen to minimise risks

§  Growing reports of difficulties opening new accounts.

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Automatic Exchange of Information

AEOI – Automatic Exchange of (Tax) Information.

FATCA – Foreign Account Tax Compliance Act - US legislation.

IGA – Inter Governmental Agreement.

§  UK/US Treaty related to FATCA that implements FATCA in

UK.

CDOT – Crown Dependencies (and) Overseas Territories.

§  FATCA style IGAs between UK & CDs and Ots.

CRS – Common Reporting Standard.

§  New global standard for AEOI.

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CRS

§  New global standard for AEOI.

§  91 countries now committed to exchange by end of 2018.

§  All EU Member States signed up via DAC (Directive on

Administrative Co-operation).

§  Switzerland, CDs, OTS signed up.

§  China, Brazil, Russia signed up.

§  US sticking with FATCA.

§  No clear commitment from Panama, Cook Islands, Nauru,

Vanuatu & Bahrain.

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CRS vs FATCA

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FATCA CRS

Registrations ! "

Scan for Citizenship ! "

Scan for Tax Residence " !

Owner documented status ! "

AEOI - Key Dates

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FATCA CDOT CRS

Registrations 01/01/2015 n/a n/a

1st Reporting period ends 31/12/2014 31/12/2015 31/12/2016

Report to HMRC 31/05/2015 31/05/2016 31/05/2017

Information exchanged 30/09/2015 30/09/2016 30/09/2017

Trusts & AEOI

The following are the same for all types of AEOI: §  All trusts are deemed to be entities.

§  Trusts are either Investment Entities - a type of Financial Institution (FI) - or Non Financial Entities (NFE).

§  What sort of entity a trust is depends on what assets are in the trust and who ‘manages’ the trust.

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Trusts & AEOI

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The Basics:

§  Under FATCA trusts that are FIs should have registered with the IRS - for CRS there is no equivalent need to register.

§  Under both FATCA and CRS FIs must either report or make arrangements for someone else to report for them.

§  Trusts that are NFEs don’t need to register or report, they will be reported on by any FIs they use.

Trusts & AEOI

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If the trust gets most of its income from financial assets, it will be a Financial Institution where: §  The trustee is a FI.

§  The trustee engages FI to manage the trust. §  The trustee engages FI to manage the financial assets of the

trust.

Trusts & AEOI

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What determines if trust is a Financial Institution? Test 1: Is the entity (i.e. the trust) carrying on business and is 50% or more of the entity’s gross income attributal to trading in money market instruments, foreign exchange and a range of other financial instruments, portfolio management or the investment and administration of funds? NB - Trust companies will normally be FIs on this test.

Trusts & AEOI

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What determines if trust is a Financial Institution?

Test 2: Is more than 50 per cent of the trust’s income attributable to investing, reinvesting or trading in financial assets? If YES: Go to Test 3 If NO: Trust is NFE Test 3: Is the trust ‘managed’ by a Financial Institution? If YES: The trust is a Financial Institution (an Investment Entity) If NO: Trust is NFE

Is the Trust Managed by an FI?

§  If the trust holds largely financial assets and the trustee is a corporate trustee, the trustee is likely to be an FI and this will make the trust an FI for AEOI purposes.

§  If the trustee is a ‘professional’ (i.e. he is paid) but he is appointed as an individual, the trust is not necessarily an FI.

§  If the trust hold largely financial assets and the trustees appoint a discretionary fund manager to manage the trust’s assets, the fund manager is likely to be an FI and this will make the trust an FI for AEOI purposes.

§  If the trustees buy retail investment products (unit trusts, insurance bonds etc…) they have not appointed a discretionary fund manager.

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Is the Trust Managed by an FI?

What if the trust company does not charge? §  If a related entity of the trust company earns income from the

trust, some of that income will be deemed to attributable to the trust company.

§  This will make both the trust company and the trust FIs.

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Options for a trust which is FI?

Option 1: Trustee Documented trust (FATCA & CRS) §  Trustee is a Reporting FI (because it is corporate trustee). §  Trust becomes a non-Reporting FI. §  Trust does not need to register (for FATCA) or report (for either

FATCA or CRS). §  Trustee will register (for FATCA) and report on trust (for both

FATCA and CRS).

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Options for a trust which is FI?

Option 2: Trust Reports as a FI (FATCA &CRS)

§  Must register with IRS and obtain a GIIN (for FATCA).

§  Must report as an FI via HMRC (for both FATCA and CRS).

§  Must declare status as a Reporting FI to all FIs it has accounts with (and provide GIIN/TIN).

§  Can use third party service provider, but compliance responsibilities remain with trust.

§  NB. FATCA options of Sponsored Investment Entity & Owner Documented FI are not available under CRS!

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Who gets reported?

CRS

“Reportable Jurisdiction Person” means an individual or Entity that is resident in a Reportable Jurisdiction under the tax laws of such jurisdiction

“Reportable Person” means a Reportable Jurisdiction Person other than: (i) a corporation the stock of which is regularly traded on one or more established securities markets; (ii) any corporation that is a Related Entity of a corporation described in clause (i); (iii) a Governmental Entity; (iv) an International Organisation; (v) a Central Bank; or (vi) a Financial Institution

“Reportable Account” means an account held by one or more Reportable Persons or by a Passive NFE with one or more Controlling Persons that is a Reportable Person

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FATCA

“U.S. Person” means a US citizen or resident individual…

“Specified U.S. Person” means a US Person, other than:….

“U.S. Reportable Account” means a Financial Account ….held by one or more Specified US Persons or by a Non-U.S. Entity with one or more Controlling Persons that is a Specified U.S. Person

Who gets reported?

The term “Controlling Persons” means the natural persons who exercise control over an Entity. In the case of a trust, such term means the settlor(s), the trustee(s), the protector(s) (if any), the beneficiary(ies) or class(es) of beneficiaries, and any other natural person(s) exercising ultimate effective control over the trust… The term “Controlling Persons” must be interpreted in a manner consistent with the Financial Action Task Force Recommendations. N.B. To identify the Controlling Persons of an entity FIs may generally rely on information collected and maintained pursuant to AML/KYC procedures.

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Who gets reported?

§  In the case of a trust that is a FI, an “Equity Interest” is considered to be held by any person treated as a settlor or beneficiary of all or a portion of the trust, or any other natural person exercising ultimate effective control over the trust.

§  A Reportable Person will be treated as being a beneficiary if they have the right to receive, directly or indirectly, a mandatory distribution or may receive a discretionary distribution from the trust.

§  For these purposes, a beneficiary who may receive a discretionary distribution from the trust will only be treated as a beneficiary if they receive a distribution in the appropriate reporting period (i.e. either the distribution has been paid or made payable).

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Charities & AEOI

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Under FATCA:

§  UK registered charities that are FIs are ‘Deemed Compliant Financial Institutions” and do not need to register or report.

§  Charities that are not FIs are Active NFEs and their accounts are not reportable.

Under CRS:

§  UK registered charities that are FIs are not ‘Deemed Compliant’. However, there is no registration requirement (for anyone under CRS) and they are unlikely to have reportable accounts.

§  Charities that are not FIs are Active NFEs and their accounts are not reportable.

Deputies & AEOI

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Under FATCA:

§  “An account is not a reportable account if ….. the account is held to comply with an order or judgement made or given in legal proceedings”.

Under CRS:

§  “Excluded account includes … an account established in connection with…a court order or judgement”.

Draft UK Guidance §  “Excluded accounts include…an account held by a person

appointed by the Court of Protection…”.

Excluded accounts

Under both FATCA & CRS the following are excluded and are not reportable:

§  Most retirement & pension accounts (including immediate needs annuities).

§  Tax favoured products (ISAs, Nat Savings, Share incentive plans etc…).

§  Estate accounts (where institution has death certificate).

§  ‘Escrow accounts’ - i.e. accounts created as a result of court order – including COP deputyship accounts, etc...

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What gets reported?

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FATCA Reporting year 31/12/2014 “Each Specified US Person” CRS Reporting year 31/12/2016 “Each Reportable Person”

To be Reported:

§  Name

§  Address

§  TIN

§  DOB

§  Account number

§  GIIN of reporting FI

§  Account balance or value

§  Jurisdiction of residence

§  Place of birth (new

accounts)

What gets reported?

Account balance or value: §  General principle is that value to be reported is the value the FI

calculates for reporting to the account holder.

§  For an equity interest in an investment entity (i.e. a trust which is an FI) the amount to be reported is the value calculated by the FI for the purpose that requires most frequent valuation.

§  Standard accounting principles should apply - no need to do special valuations of real property for AEOI.

§  Where there is more than one controlling person, report total value of trust for all controlling persons, same as for joint accounts.

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What gets reported?

Mandatory beneficiaries: FATCA Guidance “The balance or value for a beneficiary that is entitled to a mandatory distribution…from the Trust will be the net present value of amounts payable in the future…measured on a recognised actuarial basis.” §  Could use actuarial tables in Intestate Succession (Interest &

Capitalisation) (Amendment) Order 2008 or S7520 IRS Code.

Or §  Use the “joint account” route and simply report total value of the

trust.

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What gets reported?

Reportable Payments:

Total gross amounts paid or credited to any Beneficial Owner and beneficiaries who receive mandatory or discretionary distributions during the calendar year or appropriate reporting period, including aggregate payments in redemption (in whole or in part) of the account. Applies from: §  Reporting year to 31/12/2015 for FATCA §  Reporting Year to 31/12/2015 for CDOT §  Reporting year to 31/12/2017 for CRS

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AEOI – Key Reporting Dates

FATCA CDOT CRS Client identification + account balance

31/5/2015 n.a. 31/5/2017

Client identification + account balance + payments

31/5/2016 31/5/2016

(plus account balance for 2014)

31/5/2018

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Information for preceding year to 31 December

Due Diligence – Account thresholds

Individual Accounts Entity Accounts Pre-Existing New Pre-Existing New

High Value Threshold High

Value Threshold High Value Threshold High

Value Threshold

FATCA US $1mn US $50,000 " " US $1mn

US $250,000 " "

CRS US $1mn " " " US $1mn

US $250,000 " "

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§  Account aggregation rules apply.

§  Application of thresholds are generally optional.

§  High value limit for pre-existing entities under FACTA is level that triggers reporting for trusts that start off below $250,000.

AML - The old system does not work

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“Thanks to the EU's new rules, European law enforcers should soon find it easier to track the money flows of

organised crime, bribe-takers and the like. That will help to push up detection rates for illicit funds, which are estimated

to be as low as 1% worldwide, with a seizure rate of just 0.2%, according to the United Nations Office on Drugs and Crime.”

The Economist 21/1/2015

AML - Financial Action Taskforce Recommendations 2012

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Recommendation 24 - Legal persons (corporates & foundations) §  Identify beneficial owners. §  Ensure timely access. §  Need not be a register or publicly available. Recommendation 25 – legal relationship (trusts) §  Identify beneficial owners. §  Ensure timely access. §  Need not be a register or publicly available.

UK Response to FATF Recommendations

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Corporates §  Register of ‘persons with significant control’ (PSC). §  Companies maintain register from 1st Jan 2016 – Companies

House filing from April 2016. §  Public access to register. §  Trusts that hold companies - trustee is PSC, beneficiaries are

generally not. Settlor? §  ‘Request’ to CDs and OTs to follow suit.

Trusts §  No changes planned.

EU 4th AML Directive

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Key Principle: ‘Access to information without alerting parties involved’

Article 30 - Corporates & foundations §  Register of beneficial owners. §  Public access to register. §  Trusts that hold companies? Article 31 - Trusts §  Register “when the trust generates tax consequences”. §  Access only to competent authorities. Other issues §  EU to pressure others to follow (e.g. Switzerland). §  Commission to publish black list of high risk countries.

Financial Institutions & AML

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§  FIs coming under intense regulatory scrutiny of AML - e.g. US Treasury to require FIs to collect beneficial ownership information and make it available.

§  FIs face huge penalties for getting it wrong – e.g. Standard Chartered fined $300 million and barred from dealing for ‘high risks clients’ in HK and UAE.

§  FIs are now de-risking - growing aversion to jurisdictions/

business which might count as ‘high risk’.

Financial Institutions & RBA

Notable bank fines for AML & sanctions breaches:

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Bank $bn Date Commerzbank 1.4 2015 BNP Paribas 8.9 2014 JP Morgan Chase 2.1 2014 Standard Chartered 0.3 2014 HSBC 1.9 2012 Standard Chartered 0.7 2012 ING 0.6 2012 ABN 0.5 2010

Issues for Practitioners

§  Are you ready for FATCA reporting by 31/5/2015?

§  Are you ready to respond to the extra CDD procedures your bank will apply?

§  Are your clients ready for:

§  CDOT reporting by 31/5/2016 §  CRS reporting by 31/5/2017 §  Do they need to consider disclosure options?

§  Are your CDD procedures ready for beneficial ownership reporting by 1/1/2016?

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Questions

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Risk & Reward Investment Proposi@ons & Concerns for Depu@es Mark Holt Execu(ve Manager David Mulholland DipPFS Investment Consultant

David Mulholland Frenkel Topping

Agenda •  Introduc(on •  Assessing Cost •  Iden(fying Value •  PorUolio Risk Management •  PlaUorm Delivery

ü  Mul( Provider Solu(ons ü  Goals Based Investment ü  Flexibility of advice

Client

IFA

Investment Provider

Deputy

Introduc@on

3 Professions 1 Client 1 Goal

CLIENT

FT IFA

DEPUTY

DIM

Client

IFA

Investment Provider

Deputy

Assessing Cost

Client

IFA

Investment Provider

Deputy

Iden@fying Value

Process Performance

People Cost

Value

Risk Rated – Safe??

Risk Targeted – Safer

REMAP 5 – Asset Alloca@on

Canaccord Genuity -‐ REMAP 5 Safe Hands

7IM Risk Rated – Moderately Cau@ous

SEI – Core Fund

FTL Enable

FUSION

•  your Provider •  Use a Consistent Approach to Analysis •  Set Client Specific Benchmarks •  Value is Cri(cal, not Cost •  How can Frenkel Topping Help?

Summary

Laxmi Patel Boyes Turner Solicitors

Education, education, education…impact of ‘the

greatest reform to the SEN system in 30 years’

Laxmi Patel 7 May 2015

Do you need to know about the changes?

Yes if: •  You work with children or young people

(CYP) •  They have a disability or a learning

difficulty •  They are 0-25 years

The new Law and Guidance •  Children and Families Act 2014 (CFA) Part

3 – CYP with Special Educational Needs (SEN)

•  Associated Regulations

•  SEND Code of Practice 2015

The ‘old’ Law & Guidance

•  The Education Act 1996 – Part lV •  The Education Act 1996 – Schedule 27 •  Education (SEN) (England) (Consolidation

Regulations) 2001 •  SEN Code of Practice 2001

Definition of SEN (1)

S20 CFA 1)  CYP has SEN if they have a learning

difficulty requiring special educational provision (SEP)

Definition of SEN (2) What is a learning difficulty or disability for CYP of school age? 1)  Significantly greater difficulty in learning

than peers; or 2)  Disability makes it difficult to use facilities

provided in mainstream schools/colleges

Definition of SEN (3) What is a learning difficulty or disability for CYP under school age? If likely to fall under (2) above when of school age of likely to be if no SEP made

Additional support

•  17.9% of children in schools have SEN •  2.8% have a Statement (DfE January

2014) •  School based support – Additional SEN

Support •  Statement or Education, Health and Care

Plan (EHCP)

Statements of SEN

•  Statement of SEN Part 2 – child’s educational needs

•  Part 3 – provision to meet those needs •  Part 4 - school

Education, Health and Care Plans

•  Replaces Statements and Learning Difficulty Assessments from 0-25 years

•  Must specify educational needs and support required but also any health and social care reasonably required by the learning difficulties and disabilities (s37(2))

•  Only education can be appealed to tribunal – but note the SEND (Pilot) Regulations 2015

How to get an EHCP

•  Request can be made by parent, YP or school/college

•  Statutory test 36(8) has or may have SEN or EHC provision needed

•  EHC Assessment Reg.6(1) •  Timescales

Benefit of having an EHCP

•  Certainty of getting support •  Support funded by LA •  Health and social care support •  Can go up to 25 years •  Personal budget and direct payments

Review of the EHC Plan

•  Under five years – review every 3-6 months •  Over five years – review annually

•  Review date on transfer remains 15 February

•  Transition from Statement –1 April 2018

•  Transition from LDA – 1 September 2016

Appealing to the Special Educational Needs and

Disability Tribunal •  The different types of appeal

•  Litigation and experts’ costs •  Timescales – 12/20 weeks •  The Hearing •  The decision •  Outcome

Post 16

•  Duty on FE college to admit student if named in EHC plan and have regard to the new legislation

•  FE college to use ‘best endeavours’ so young people with SEN have access to wide range of study programmes and support

•  Apprenticeships

Personal budgets

•  LA must prepare a personal budget if asked to do so by the parent or young person

•  Direct payments

Ask yourself… •  Is the CYP receiving adequate support at

school?

•  Is the CYP at the right school/college?

•  Does the Statement/EHCP need a Health check?

•  Mental capacity – is the YP able to make decisions?

•  Is there an imminent Annual Review or Transition?

Thank you – any questions?

Laxmi Patel @bt_sen1 0800 884 0723 / 0118 959 7711 [email protected] www.senexpertsolicitors.co.uk

Angela Johnson OPG

www.gov.uk/opg"

Changes within OPG

Freedom to choose: deputy day conference London 2015

Angela Johnson Head of Practice and Compliance, OPG 7 May 2015

www.gov.uk/opg"

Agenda •  Performance

LPAs and deputyships

•  Working in partnership Recent and planned activity

•  Digital and IT LPA, Sirius and deputyship tool

•  Supervision review Changes and works in progress

•  Assurance visits Summary and professional deputy related

•  Other developments Published standards and panel deputy campaign

www.gov.uk/opg"

Performance LPA and EPA applications

252,000

311,000

409,000

40,00090,000140,000190,000240,000290,000340,000390,000440,000490,000

2012/13 2013/14 2014/15

Financial year

App

licat

ions

rece

ived

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44,593

49,006

53,100

40,000

45,000

50,000

55,000

60,000

2012/13 2013/14 2014/15

Financial year

Ord

ers

su

pe

rvis

ed

Performance Court appointed deputyship orders: supervised

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Working in partnership Examples of OPG partner activity

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Digital and IT LPA, Sirius and deputyship tool

•  Online LPA service (live)

•  Online deputyship tool (development)

•  Sirius case management system

•  Online register plans

LPA Service

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Supervision review What we’ve doing already

Specialist teams Organised by deputy type

Types 1-3 Will disappear over coming year

Guidance Letters, leaflets and online all being improved

Early contact All lay/new professional deputies get a settling-in call

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Supervision review Practice and Compliance: work in progress (1/2)

Standards •  What good looks like Assurance visits •  Standards will tie directly to Assurance Visits

undertaken Risk •  Visitors’ professional opinion feeds into risk

assessment of the case. We’re exploring ways to manage risk better

Asset inventories •  Deputies will be asked to submit one to us

Annual plans •  Deputies will be asked to submit their plans to us

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Supervision review Practice and Compliance: work in progress (2/2)

Charging estimates •  Professional deputies (inc LAs) asked to include these in annual plans

Senior Court Costs Office •  Seeing how cost estimates submitted to OPG can be shared with SCCO from outset

Reporting •  All deputies to report “Type 3” conversion •  Report requirement extended to all Supervision fees •  Need to consult on new fee structure

Digi-deps •  Introducing new digital channels for deputies

www.gov.uk/opg"

Supervision review New deputyship reporting (1/2) •  Full report form OPG102 has under gone user testing

with provisional introduction date of mid-late June 2015

•  Conversion of existing Type 3 cases to new reporting requirement from April 2015

•  Requirement for 1st year deputies to fully report

•  Standard ‘short’ report form to be produced to support conversion process

•  Short’ form issued to new cases on anniversary of their order and once existing case converted, issued on anniversary of Court order

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Supervision review New deputyship reporting (2/2) •  New Health & Welfare report form currently being

tested

•  Two further forms referred to as 'inserts‘ are currently being designed and these will be introduced at earliest opportunity later this year:

• 1st insert - asks detailed questions about a professionals fees

• 2nd insert - asks detailed questions about local authorities fees

•  All forms developed with stakeholder input and user testing

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•  From April 2015 - new Type 3 cases ‘settling in call’ processes will introduce reporting requirement from the outset

•  Standard (short) reports not received into Supervision until April 2016

•  All local authorities (LA) sent letter explaining Standard (short) reporting requirement

Supervision review New deputyship reporting: Type 3 requirements

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•  Conversion process will be discussed when time to convert caseload •  Conversion by phone call and discussion with the deputy •  Conversion happens over three year period (LA and Professional teams

will convert cases in first two years) •  Deputy not case specific approach will be taken to conversion

Approximate number of cases

Approximate number of deputies

Local authority 10,500 170

Lay 6,900 6,900

Professional 1,700 750

Health and Welfare 400 400

Total number of cases 19,500 8,220

Supervision review New deputyship reporting: Type 3 requirements

www.gov.uk/opg"

•  Professional and local authority deputies

•  Over 500 completed during 2014/15

•  850 planned for 2015/16

•  Important part of our impact indicator to review 40% of professional and local authority deputies each year

•  Supports our strategy of proportionate support and supervision

Assurance visits Summary

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•  Support and guidance to deputies where gaps in knowledge are identified

•  Highlighted good and bad practice

•  Issues may not have been identified without an Assurance Visit

Assurance visits Professional deputies

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•  Deputyship ‘Duty of Care’ paragraph 8.57:

‘If deputies are being paid for their services, they are expected to demonstrate a higher degree of care or skill when carrying out their duties.’

What does that look like?

Published standards Mental Capacity Act 2005 - Code of Practice

www.gov.uk/opg"

Published standards Best practice and levels of service expected •  Local authority and professional deputy standards Split into five key areas: Standard 1: secure the client’s finances and assets Standard 2: gain insight of the client to make decisions in their best

interest Standard 3: maintain effective internal office processes and organisation Standard 4: have the skills and knowledge to carry out duties as deputy Standard 5: health and welfare standards

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•  Current panel of deputies comes to an end in May 2015

•  Mostly solicitors, two legal trust corporations and one charity

•  Appointment campaign for new panel currently under way

•  Aim to broaden range of skills and experience of new panel while maintaining high standards

•  Campaign response positive

•  New panel due to commence on 1 June 2015

Panel deputies Appointment campaign update

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Breakout Sessions

Conference Chair Roundup #FTDepu(es

Documents

FT Deputy Day London 2015